Howard v. Wickham et al

Filing 48

ORDER - Respondents' motion to dismiss (ECF No. 29 ) is DENIED. Petitioner's motion for discovery (ECF No. 34 ) is DENIED. Respondents shall file an answer to the amended petition (ECF No. 21 ) by 6/10/2019. Reply due 30 days from service of the answer. Signed by Judge Howard D. McKibben on 4/11/2019. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9
10
11
12
13

LAMONT HOWARD,

)
)
Petitioner,
)
)
v.
)
)
HAROLD WICKHAM, et al.
)
)
Respondents.
)
)
_________________________________ )

14

This

counseled

habeas

petition

3:16-cv-00665-HDM-VPC
ORDER

comes

before

the

court

on

15

respondents’ motion to dismiss the petition as untimely.1 (ECF No.

16

29). Petitioner has opposed (ECF No. 43), and respondents have replied

17

(ECF No. 47). Petitioner argues that he is entitled to equitable

18

tolling and has moved for discovery related to that claim. (ECF No.

19

34). Respondents have opposed (ECF No. 38), and petitioner has replied

20

(ECF No. 41).

21

Petitioner challenges his 2011 state court conviction for sexual

22

assault, kidnapping in the first degree, attempted sexual assault, and

23

two counts of battery with intent to commit sexual assault.

24

56).2

25

Petitioner thereafter filed a state postconviction petition for habeas

(Ex.

The Nevada Supreme Court affirmed on direct appeal. (Ex. 80).

26
27
28

1

Although the motion also sought to dismiss Ground 1 as unexhausted,
respondents withdraw the argument in their reply.
2

The exhibits cited in this order, comprising the relevant state court
record, are located at ECF Nos. 30-33.

1

corpus relief.

2

petitioner in those proceedings, and Mr. Story filed a supplemental

3

petition on petitioner’s behalf.

4

court denied relief, the Nevada Supreme Court affirmed. (Exs. 99 &

5

111).

(Ex. 83). Robert Story was appointed to represent

(Exs. 85 & 89).

After the trial

Remittitur issued on April 12, 2016. (Ex. 112).

6

Mr. Story retired from practice in 2016 – his petition to resign

7

from the bar was filed on March 24, 2016, and granted on September 12,

8

2016.

9

to indicate that Mr. Story ever moved to withdraw from petitioner’s

10

(ECF No. 9 at 31 & 34; ECF No. 44 at 5-7).

There is nothing

case or advised petitioner of his retirement.

11

On May 11, 2016, petitioner sent a letter to the Nevada Supreme

12

Court indicating that he had been unable to contact his attorney

13

because his phone number had changed without notice, and that he would

14

like to know the “status” of his case. (ECF No. 9 at 17). In response,

15

the Nevada Supreme Court sent petitioner a copy of the docket sheet,

16

showing that an order of affirmance had issued in his appeal. (ECF NO.

17

9 at 18-19). The docket sheet was printed out on May 19, 2016. (Id.)

18

There is no evidence to indicate that the court sent petitioner any

19

further information, including the order of affirmance.

20

On May 24, 2016, petitioner signed a motion to withdraw counsel

21

and for transfer of his case file, which was received by the trial

22

court on June 3, 2016, and granted on June 28, 2016.

23

8-14).

24

(ECF No. 9 at

On August 11, 2016, petitioner wrote a letter, which was received

25

by the trial court on August 17, 2016.

26

letter, petitioner indicated that Mr. Story had not yet complied with

27

the court’s order directing him to transfer petitioner’s case file.

28

(Id.)
2

(ECF No. 9 at 15-16).

In that

1

On September 14, 2016, petitioner filed a motion for contempt

2

with the state court, indicating that Mr. Story had still failed to

3

provide him with his case file. (ECF No. 9 at 21-24).

4

petitioner asserted that Mr. Story never communicated with him after

5

filing the postconviction notice of appeal, would not accept or

6

respond to any of petitioner’s letters or phone calls, and that his

7

phone number and address changed without notice. Petitioner asserted

8

that Mr. Story never informed him that the Nevada Supreme Court had

9

decided his appeal or issued remittitur and that petitioner has “never

In the motion,

10

received any copy of said order or remittitur.” (Id.)

11

a response filed September 23, 2016, indicated that on information and

12

belief, Mr. Story was no longer practicing in Nevada and had in fact

13

left the United States with no plan to return. (Id. at 26).

The State, in

14

Petitioner thereafter, on or about November 14, 2016, filed his

15

federal habeas petition, which respondents now move to dismiss as

16

untimely.

17

The

Antiterrorism

and

Effective

Death

Penalty

Act

of

1996

18

(“AEDPA”) established a one-year period of limitations for federal

19

habeas petitions filed by state prisoners.

20

period begins to run after the date on which the judgment challenged

21

became final by the conclusion of direct review or the expiration of

22

the time for seeking such direct review, unless it is otherwise tolled

23

or subject to delayed accrual. 28 U.S.C. § 2244(d)(1)(A).

The one-year limitation

24

As set forth in the court’s prior order, unless otherwise tolled

25

or subject to delayed accrual, the deadline for petitioner to file a

26
27
28
3

1

federal petition for writ of habeas corpus was September 29, 2016.3

2

(ECF No. 5 at 3). Petitioner filed his federal petition roughly 47

3

days later, on or around November 14, 2016.4 Petitioner concedes that

4

the petition was filed at least 30 days after September 29, 2016,

5

depending on when petitioner mailed his habeas petition, but asserts

6

that the limitations period should not have expired by that time due

7

to the application of equitable tolling.

8

Equitable tolling is appropriate only if the petitioner can show

9

that: (1) he has been pursuing his rights diligently, and (2) some

10

extraordinary circumstance stood in his way and prevented timely

11

filing.

12

tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d

13

1104, 1107 (9th Cir. 1999), and “the threshold necessary to trigger

14

equitable tolling is very high, lest the exceptions swallow the rule,”

15

Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United

16

States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The

17

petitioner ultimately has the burden of proof on this “extraordinary

18

exclusion.” Id. at 1065. He accordingly must demonstrate a causal

19

relationship between the extraordinary circumstance and the lateness

20

of his filing.

21

2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061

22

(9th Cir. 2007).

Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable

E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.

23
24
25
26
27
28

3

The parties generally agree with the court’s calculation, though
respondents assert the statute expired one day earlier. The difference, in
the context of this case, is immaterial.
4

As the court previously noted, the petition is dated October 28, 2016,
but the motion for appointment of counsel submitted with it is dated
November 14, 2016. (ECF No. 1-1 & 1-2). The court finds it unnecessary to
determine the exact date the petition was mailed because, as will be
discussed, petitioner is entitled to equitable tolling through the date of
filing the petition, even if it was not filed until November 14, 2016.

4

1

The Ninth Circuit has “adopted the ‘stop clock’ approach to

2

analyzing claims for equitable tolling. “[T]he statute-of-limitations

3

clock stops running when extraordinary circumstances first arise, but

4

the clock resumes running once the extraordinary circumstances have

5

ended or when the petitioner ceases to exercise reasonable diligence,

6

whichever occurs earlier.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir.

7

2015) (citing Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014)).

8

Petitioner asserts he is entitled to equitable tolling based on

9

the abandonment by postconviction counsel and his lack of his case

10

file.

11

“Failure to inform a client that his case has been decided,

12

particularly where that decision implicates the client’s ability to

13

bring further proceedings and the attorney has committed himself to

14

informing his client of such a development, constitutes attorney

15

abandonment.” Gibbs v. Legrand, 767 F.3d 879, 886 (9th Cir. 2014); see

16

also Maples v. Thomas, 565 U.S. 266, 283 (2012). Further, the complete

17

lack of a case file might, under some circumstances, justify equitable

18

tolling, see Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir.

19

2009); Lott v. Mueller, 304 F.3d 918, 924-25 (9th Cir. 2002), if “the

20

hardship

21

extraordinary circumstance that caused” the untimely filing of his

22

federal petition. See Waldron-Ramsey, 556 F.3d at 1013.

23

caused

by

lack

of

access

to

his

materials

was

an

Petitioner asserts that discovery is necessary to prove his claim

24

of abandonment by counsel and lack of his case file.

25

court finds that the evidence in the record sufficiently supports the

26

petitioner’s claim such that discovery is not necessary. Considering

27

the parties’ arguments and the evidence that has been submitted, the

28

court finds that the statute of limitations should be equitably tolled
5

However, the

1

through

the

filing

of

the

pro

se

petition

due

to

Mr.

Story’s

2

abandonment of petitioner and petitioner’s lack of access to at least

3

part of his case file, including importantly and undisputedly, the

4

Nevada Supreme Court’s decision in his postconviction appeal.

5

Petitioner’s exhibits demonstrate both Mr. Story’s abandonment

6

of petitioner during the pendency of his postconviction appeal and

7

petitioner’s diligent efforts to learn the status of his case on his

8

own and obtain his case file so he could file his federal petition.

9

Respondents do not concede petitioner’s assertion that Mr. Story

10

abandoned petitioner but nor do they offer any persuasive argument or

11

evidence to counter it. They also offer no evidence or argument in

12

support of a contention that petitioner had in his possession, at any

13

time before filing the federal petition, a copy of the Nevada Supreme

14

Court’s decision in his postconviction appeal. It was not unreasonable

15

for petitioner to attempt to obtain a copy of this and the rest of his

16

file before submitting his federal habeas petition, which clearly

17

caused a delay of at least two months. It is further clear that

18

petitioner acted diligently once learning that he was not likely to

19

ever obtain his file from Mr. Story, who had left the country.

20

prepared and filed his federal habeas petition less than two months

21

after learning this information, which the court finds in the context

22

of this case to be diligent.

23

has

24

deadline

25

respondents’ arguments against application of equitable tolling in

26

this case are not persuasive.

sufficiently
due

to

The court further finds that petitioner

established
the

He

that

extraordinary

he

missed

the

circumstances

federal
he

filing

faced.

The

27

As the pro se petition is therefore considered timely and

28

respondents do not argue the operative amended petition is untimely
6

1

on any other grounds, i.e., that it does not relate back to the pro

2

se petition, the motion to dismiss the amended petition as untimely

3

will be denied.

4

Turning to petitioner’s motion for discovery, that motion too

5

will be denied. Petitioner’s sole basis for seeking discovery is to

6

bolster his claim of equitable tolling.

7

concluded that petitioner should be given the benefit of equitable

8

tolling in this case, there is no reason to allow further discovery

9

to support that claim.

10
11
12
13

Because the court has

In accordance with the foregoing, IT IS THEREFORE ORDERED that
respondents’ motion to dismiss (ECF No. 29) is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for discovery (ECF
No. 34) is DENIED.

14

IT IS FURTHER ORDERED that respondents shall file an answer to

15

the amended petition within sixty days of the date of this order.

16

Petitioner will have thirty days from service of the answer within

17

which to file a reply.

18

IT IS SO ORDERED.

19

DATED: This 11th day of April, 2019.

20
21

_________________________________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
7